Saturday, July 13, 2024

UNHRC/BASL – What about the Human Rights of CJ Mohan Pieris?

Whether anyone likes or dislikes Mohan Pieris is irrelevant. If due process was alleged to be denied to CJ43 Shirani Bandaranaike, was due process applied to CJ44 Mohan Pieris. This is the question and the response must be based on principled facts. If entities like UNHRC and BASL took up the case of CJ Shirani Bandaranaike, why did they not do the same for Mohan Pieris? CJ Mohan Pieris was unceremoniously removed as 44th Chief Justice of Sri Lanka on 28 January 2015 by the Ranil-Sirisena led yahapalana government. His position as CJ44 was virtually deleted and he was replaced with CJ SriPavan who was appointed as CJ44.  If Shirani Bandaranaike was CJ43 while CJ Mohan Pieris was sworn in as CJ44 (Jan2013-Jan2015), how can Sri Pavan be made CJ4 thus erasing the judicial decisions served by Mohan Pieris as Chief Justice? BASL need to respond and UNHRC need to answer why they adopting biased attitudes to human rights of one ignoring the human rights of another!

CJ Shirani Bandaranaike

  • CJ43 appointed on 18 May 2011
  • Impeachment motion in November 2012
  • CJ43 impeached on 11 January 2013

CJ Mohan Pieris

  • CJ44 appointed 15 January 2013
  • (Govt change 9 January 2015) – group of lawyers protest at Hulftsdorp demanding Mohan Pieris step down as CJ & give him 48hrs to do so
  • 17 January 2015– BASL called for the resignation of Chief Justice Mohan Pieris
  • Mohan Pieris was not allowed into his Chambers – that ended his position as Chief Justice.
  • 22 January 2015– CID grills CJ Mohan Peiris over a complaint filed by Mangala Samaraweera. The first time a sitting CJ is questioned by the police!
  • 28 January 2015 President Sirisena’s secretary informs CJ44 by letter quoting ab initio claiming Mohan Pieris’s position as CJ was considered null & void ‘as it was never valid from the beginning’
  • 28 January 2015– BASL organizes protest against CJ Mohan Peiris
  • CJ 43 Shirani B gets reinstated in a media frenzy but only for a day & she is made to resign the same day (did she become CJ45 with reinstatement – who can answer?) https://www.youtube.com/watch?v=DGfSbhqKcVQ
  • 30 January 2015 Justice K Sripavan is appointed Chief Justice44 & not CJ45 (as Mohan Pieris was CJ44)
  • 31 January 2015 – CJ Mohan Peiris issues statement “I have not retired, resigned or vacated my office of Chief Justice, but, due to exertions by external forces reinforced by an extra judicial chain of events, find myself displaced from office by an unconstitutional process having functioned continuously in my appointment for over two years”.  http://www.sundaytimes.lk/150201/statement.pdf
  • No Constitutional provisions or Parliamentary Standing Orders were applied for the removal of CJ Mohan Pieris.
  • Can a President remove a CJ via only a letter?
  • Can lawyers stop a CJ entering his chambers & remove him/her as CJ?

Removal of a Chief Justice requires to apply provision of Constitution & follow Parliamentary Standing Orders

  1. Articles 107(2) & 107(3) of the Constitutionsets the procedure to be adopted to remove a Chief Justice, President of the Court of Appeal or any other judge of the Supreme Court & Court of Appeal on ‘grounds of proved misbehavior or incapacity”?
  2. Resolution presented to Speaker or placed on Order Paper of Parliamentsigned by 1/3 of total members in Parliament & appointing of Select Committee of not less than 7 Members to investigate & report to Parliament regarding the allegations.
  3. Select Committeegiven 1 month to deliberate.
  4. Select Committee requires to hand over to the CJ a copy of their deliberations & CJ must supply a written statement in defense.
  5. Opportunity for CJ to appear before Select Committeeto give version.
  6. Decision of Select Committee presented to President by Speaker on behelf of Parliament.

Were these 6 steps followed for the removal of CJ Shirani Bandaranaike – Yes

  • 117MPs handed petition on 1 Nov 2012 (Standing Orders of Parliament & Constitution was upheld)
  • 11 Member Select Committee appointed on 14 November 2012
  • Deliberation of Select Committee handed on 8 December 2012 (before 1month)
  • Parliament debated 10th& 11thJanuary 2013 – Resolution passed by 155 votes in favor & 49 against
  • CJ43 Shirani B was impeached on 11 January 2013.

Were these 6 steps followed for the removal of CJ Mohan Pieris – NO

The question is why not & how legally valid is the removal of CJ Mohan Pieris.

Why did the BASL defend CJ ShiraniB and not CJMohan Pieris?

Shouldn’t BASL be upholding principles/facts & the law and not their dislike for Mohan Pieris?

Evidently, the bias was the same internationally.

While the human rights of CJ ShiraniB was important to the UNHRC, the human rights of CJ Mohan Pieris was not.

  • 18 January 2013 – UNHRC head Navi Pillay “further eroded the rule of law in the country and could also set back efforts for accountability and reconciliation”
  • 15 November 2012 CommonwealthSecretary General Kamalesh Sharma issued 3 separate statement denouncing the impeachment “The dismissal of the Chief Justice will be widely seen..as running counter to the independence of the judiciary, which is a core Commonwealth value.”
  • 18 January 2013 European Union– High Representative of the Union for Foreign Affairs and Security Policy Catherine Ashton “the independence of the judicial branch cannot be made subject to actions by any other branch of government”
  • 11 January 2013  Canada– Foreign Minister John Baird “highly politicized, lacking basic transparency and respect for the guarantees of due process and fair trial”
  • 11 January 2013  United Kingdom– The Foreign and Commonwealth Office “respect democratic principles”
  • 2 November 2012 The United States Department of State“guarantee due process, and to ensure that all investigations are conducted transparently and in accordance with the rule of law”.
  • 15 January 2013 State Department spokesperson Victoria Nulandexpressed concern about the impeachment’s impact on the democratic process, saying “we were concerned about the perception of reprisals against somebody for independent thinking and action”
  • 6 December 2012 International Commission of Jurists(ICJ) stated that the impeachment process ignored “international standards and practice”
  • On 15 January 2013 ICJissued a statement which condemned Mohan Peiris’ appointment as chief justice, describing it as a “further assault on the independence of the judiciary”and called for Bandaranayake’s re-instatement
  • 23 January 2013 – 44 senior judges and jurists from around theglobe wrote an open letterto President Rajapaksa which condemned Bandaranayake’s removal, urged her re-instatement, saying that the impeachment was “in contravention of the Constitution, international human rights law and standards, including the right to a fair hearing, and the rule of law”

Leaving aside the intrusive and interfering nature of demands upon a sovereign government, the more important question is why these same entities did not issue similar statements for the unceremonious removal of CJ Mohan Pieris that saw lawyers protesting and not allowing the CJ to sit in his chambers & the President issuing a letter removing the CJ without adopting any due process whatsoever. What is the justification BASL and UNHRC et al have for this?

The same question is posed to Sri Lanka’s media, “professionals”, civil society and other self-claimed ‘human rights activists’, political commentators who kept mum about the unceremonial removal of CJ Mohan Pieris but went to town over removal of CJSHiraniB. All this only highlights & showcases all their bias.

The unanswered questions

  • If the ‘human rights’ of ShiraniB was denied – what about the human rights of Mohan Pieris?
  • If local and international media/individuals/organizations clamored to denounce the removal of CJ ShiraniB – why did they not do the same for CJ Mohan Pieris
  • What is the legal position of CJ Mohan Pieris’s 31January 2015 statement that he has not resigned, retired or vacated his position as Chief Justice” & the appointment of CJSriPavan as CJ44 and his judgements thereafter?
  • If due process was followed to impeach ShiraniB why was it not followed to remove Mohan Pieris?
  • Can a President remove a CJ via only a letter?
  • If ‘void ab initio’ is applied for the removal of CJ Mohan Pieris what about the legal validity of every judgement made by CJ44 Mohan Pieris from 15 January 2013 to 28 January 2015) – BASL needs to respond.
  • If ShiraniB was reinstated as CJ (even if it was for a day as she resigned) – did she become CJ45?

How can there be 2 CJ’s on historical records?

CJ43 is ShiraniB

CJ44 – MohanP & Sripavan (we have 2 CJs) – this cannot be!

CJ45 – Priyasath Depp

CJ46 – Nalin Perera

CJ47 – Jayantha Jayasuriya (sitting)

We may not know the law like lawyers which is why the BASL requires to respond with legal arguments as to the legal validity behind the removal of Mohan Pieris, the legal position of CJ44 & appointments thereafter given the controversies that have ensued and the legal validity of judgements by Mohan Pieris if we are to remove his role as Chief Justice from history books and the obvious bias of BASL in their treatment of 2 Chief Justices while the UNHRC and international bodies must explain why the human rights of one is not as important as the human rights of another. What hypocrisy!

Shenali D Waduge
Source: shenaliwaduge.com

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